Litigation Tactic: Waiting for the Plaintiffs to Die

Plaintiffs’ counsel in the Aredia/Zometa MDL are asking the judge overseeing the coordinated litigation to remand the over 300 consolidated cases.

Why? Discovery is not over.

Some people may not live to get their day in court

The fear is that the plaintiffs are dying. Quickly. These cases have been going on for 7 years. Arendia and Zometa did not give these people cancer. Most of them had it already which is why they took these drugs in the first place. They do claim that they developed osteonecrosis of the jaw (ONJ) from these drugs. Can you imagine how frustrating it must be for at least some of the people who want their day in court but will never get it?

It gets worse. Victims allege that the reason these cases are delayed is because defendant Novartis wants to delay moving the meritorious cases from moving forward to trial. The idea that the company that you believe hurt you is now getting over on you has to be just maddening.

Why Do Defendants Try to Delay?

No one can be surprised by this. That is how this game is played. Defense attorneys want to delay the good cases from going to trial because these are not wrongful death cases where the allegation is that drug caused the death. So the claims are for the anguish and misery of what these drugs did to their bones.

The harsh reality for the claimants is that if they die of something other than their injuries that gave rise to the litigation, the value of the claim diminishes dramatically. Because claims brought on behalf of the family for the decedent’s pain and suffering just do not sell very well to juries.

Juries obviously will award a lot of money in fatality cases for the loss of a loved one. Their thinking is that is money they are entitled to for their loss. But the Estate getting money for the victim’s damages just does not play as well in front of the jury because they really can’t feel the pain of the victim or compensate them for what happened to them.

The Plaintiff’s Steering Committee’s motion pointed out a crazy irony: if you file one of these cases today, they don’t go in the MDL because there is a freeze on new cases. So if you sue today, you will probably get a trial date faster than if you filed your lawsuit many years ago. This makes no sense and I think you can expect the MDL judge to be sympathetic to that argument.